Born Under the Constitution: Why Recent Attacks on Birthright Citizenship are Unfounded Elizabeth Wydra March 2011 All expressions of opinion are those of the author or authors. The American Constitution Society (ACS) takes no position on specific legal or policy initiatives. Born Under the Constitution: Why Recent Attacks on Birthright Citizenship are Unfounded Elizabeth Wydra Since its ratification in 1868, the Fourteenth Amendment has guaranteed that ―All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.‖ Just a decade before this language was added to our Constitution, the Supreme Court held in Dred Scott v. Sandford that persons of African descent could not be citizens under the Constitution. Our nation fought a war at least in part to repudiate the terrible error of Dred Scott and to secure, in the Constitution, citizenship for all persons born on U.S. soil, regardless of race, color or origin. Against the backdrop of prejudice against newly freed slaves and various immigrant communities such as the Chinese and Gypsies, the Reconstruction Framers recognized that the promise of equality and liberty in the original Constitution needed to be permanently established for people of all colors; accordingly, the Reconstruction Framers chose to constitutionalize the conditions sufficient for automatic citizenship. Fixing the conditions of birthright citizenship in the Constitution—rather than leaving them up to constant revision or debate—befits the inherent dignity of citizenship, which should not be granted according to the politics or prejudices of the day. Despite the clear intent of the Reconstruction Framers to grant U.S. citizenship based on the objective measure of U.S. birth rather than subjective political or public opinion, opponents of citizenship at birth continue to fight this constitutional guarantee. On January 27, 2011, Senators Rand Paul (R-KY) and David Vitter (R-LA), introduced a proposal in Congress that would amend the Constitution so that U.S.-born children would be considered automatic citizens only if one parent is a U.S. citizen, one parent is a legal immigrant, or one parent is an active member of the Armed Forces. The same day, in the Arizona state legislature, Republican lawmakers introduced legislation seeking to challenge the right to U.S. citizenship for children born in the state whose parents are undocumented migrants or other non-citizens. The goal, according to Arizona Representative John Kavanagh, a primary supporter of the legislation, is ―to trigger ... Supreme Court review of the phrase ‗subject to the jurisdiction thereof‘ in the 14th amendment.‖ These two examples of proposed anti-citizenship legislation are by no means unique. Indeed, the Arizona anti-citizenship bill is based on model legislation crafted by a handful of state legislators from across the country, who call themselves ―State Legislators for Legal Immigration‖ (SLLI). This model legislation attacks birthright citizenship in two ways: it would create two tiers of birth certificates, one of which states would produce only for babies born to U.S. citizens and legal residents; and it would attempt to skirt laws stipulating that the federal government defines U.S. citizenship by adding a second level of ―state‖ citizenship. According to the National Conference of State Legislatures, Arizona is the sixth state to introduce legislation relating to birth records or birth certificates and the children of foreign-born parents. 1 Similarly, the proposed resolution from tea-party darlings Senators Paul and Vitter reflects longstanding—and highly unsuccessful—efforts in Congress to diminish the constitutional guarantee of citizenship at birth. Bills have been introduced in Congress each year for more than a decade to end automatic citizenship for children born in the United States to non- citizen parents.1 Indeed, Iowa Representative Steve King (R-IA) introduced anti-citizenship legislation in the House on the first day of the 112th Congress. Because Representative King asserts that the 14th Amendment does not guarantee citizenship at birth for U.S.-born children of undocumented immigrants,2 his proposed bill does not seek to amend the Constitution, but rather would merely amend section 301 of the Immigration and Nationality Act to ―clarify‖ which classes of U.S.-born children are citizens of the United States at birth.3 Many other prominent conservative legislators have recently called for hearings or other consideration of proposals to end the 14th Amendment‘s guarantee of automatic citizenship at birth, including the current Speaker of the House and Senate Minority Leader. Academics and national politicians have added to the movement‘s momentum. In recent years, a small handful of academics have joined the debate and called into question birthright citizenship,4 and, in the 2008 presidential campaign, several Republican candidates expressed their skepticism that the Constitution guarantees birthright citizenship.5 Several of the current likely candidates for the 2012 Republican presidential nomination also oppose the constitutional guarantee of automatic citizenship at birth. Though the most prominent proponents of ending birthright citizenship have been conservative, the effort has at times been bipartisan: Democratic Senator—and now Majority Leader—Harry Reid introduced legislation that would deny birthright citizenship to children of mothers who are not U.S. citizens or lawful permanent residents, although he has since backtracked from that position.6 But the defenders of the Constitution‘s guarantee of automatic citizenship are also bipartisan. Former aides to President Ronald Reagan, both Presidents Bush, and Vice-President Dick Cheney have publicly condemned calls to end birthright citizenship. Even conservative commentator Lou Dobbs has refused to join the anti-citizenship activists.7 This common ground 1 E.g., H.R. 6789, 110th Cong. (2008); H.R. RES. 46, 110th Cong. (2007); H.R. 1940, 110th Cong. (2007); H.R. 4192, 110th Cong. (2007); H.R. 3700, 109th Cong. (2005); H.R. 3938, 109th Cong. (2005); H.R. 698, 109th Cong. (2005); H.R. 7, 105th Cong. (1997); H.R. 346, 105th Cong. (1997); H.R. 1363, 104th Cong. (1995). 2 Brian Montopoli, Steve King: “Birthright Citizenship” Bill Could be Soon, CBS NEWS, Nov. 22, 2010, t http://www.cbsnews.com/8301-503544_162-20023606-503544.html?tag=contentMain;contentBody. 3 H.R. 140, 112th Cong. (2011). 4 E.g., Peter Schuck & Rogers Smith, CITIZENSHIP WITHOUT CONSENT: ILLEGAL ALIENS IN THE AMERICAN POLITY (1985); Charles Wood, Losing Control of America’s Future, 22 HARV. J.L. & PUB. POL‘Y 465 (1999). 5 Stephen Dinan, Huckabee Retreats on Birthright Citizenship, WASH. TIMES, Jan. 9, 2008 (noting that Mike Huckabee has at times expressed support for ending birthright citizenship); Joanna Klonsky, The Candidates on Immigration, NEWSWEEK, Jan. 3, 2008 (noting that Republican presidential candidates Ron Paul, and Tom Tancredo support ending birthright citizenship); Jim Stratton, Thompson Angers State Hispanics, ORLANDO SENTINEL, Sept. 29, 2007 (reporting that Fred Thompson publicly expressed support for rethinking birthright citizenship); Political Radar, Romney Eyeing End to Birthright Citizenship, http://blogs.abcnews.com/politicalradar/2007/07/romney-still- lo.html (July 22, 2007, 16:17 EST) (explaining that Mitt Romney was looking into whether birthright citizenship could be ended legislatively or by constitutional amendment). 6 S. 1351, 103d Cong. (1993). See also James C. Ho, Defining “American”: Birthright Citizenship and the Original Understanding of the 14th Amendment, 9 GREEN BAG 2D 367, 367-68 (2006) (discussing federal hearings and legislative proposals). 7 Posting of Andrea Nill to The Wonk Room, http://wonkroom.thinkprogress.org/ (August 2, 2010, 17:57 EST). 2 between progressives and conservatives is a reflection of the fact that, regardless of how one feels about immigration policy, anyone who takes the Constitution‘s text and history seriously should respect the 14th Amendment‘s express guarantee of equal citizenship at birth. A close study of the text of the Citizenship Clause and Reconstruction history demonstrates that the Citizenship Clause provides birthright citizenship to all those born on U.S. soil, regardless of the immigration status of their parents. To revoke birthright citizenship based on the status and national origin of a child‘s ancestors, as some anti-citizenship activists are suggesting, goes against the purpose of the Citizenship Clause and the text and context of the Fourteenth Amendment. Perhaps more important, the principles motivating the Framers of the Reconstruction Amendments, of which the Citizenship Clause is a part, suggest that we amend the Constitution to reject automatic citizenship at the peril of our core constitutional values. At the heart of the 14th Amendment is the fundamental belief that all people are born equal, and, if born in the United States, are born equal citizens regardless of color, creed or social status. It is no exaggeration to say that the 14th Amendment is the constitutional embodiment of the Declaration of Independence and lays the foundation for the American Dream. Because of the 14th Amendment, all American citizens are equal and equally American. Whether one‘s parents were rich or poor, saint or sinner, the 14th Amendment proclaims that ours is a nation where an American child will be judged by his or her own deeds. I. The Text of the Fourteenth Amendment The Reconstruction Framers‘ intent to grant citizenship to all those born on U.S. soil, regardless of race, origin, or status, was turned into the powerfully plain language of Section 1 of the Fourteenth Amendment: ―All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.‖ The text of the ratified Citizenship Clause embodies the jus soli rule of citizenship, under which citizenship is acquired by right of the soil (contrasted with jus sanguinis, according to which citizenship is granted according to bloodline).